A couple of weeks ago, the Chief Prosecutor in the Office of Military Commissions filed an appeal to the Court of Military Commission Review from an order by the trial judge dismissing several of the charges in the al-Nashiri case. The appeal will be heard by Judges Krauss, Silliman and Weber. It is the first interlocutory appeal by the government to the CMCR since enactment of the 2009 Military Commissions Act. The government filed its brief on appeal on Monday. The brief for al-Nashiri is due next Thursday. (al-Nashiri has also filed a motion to dismiss the appeal as untimely.)

Meanwhile, back in the trial court, al-Nashiri’s attorneys moved to abate all proceedings before the military commission pending resolution of the prosecution’s interlocutory appeal. The trial judge denied the motion to abate proceedings altogether, but did cancel a motions hearing that had been scheduled for next week. And the court acknowledged that any proceedings relating to the dismissed charges must be put on hold pending the outcome of the interlocutory appeal. It therefore appears likely that the government’s appeal will delay even further the trial date in the case, perhaps by several months or more, unless the CMCR rules expeditiously.

In Part I of this post, I’ll describe the basic legal issue underlying the interlocutory appeal, which involves when, if at all, a terrorist group’s attack upon a civilian ship of one nation (here, France) might be deemed part of an armed conflict between that group and a different nation (the U.S.). In Part II, I’ll discuss whether that question should be resolved before trial. In Part III, I’ll address a broader, possibly more important question the appeal raises, concerning the role of a military factfinding panel (analogous to a jury) in deciding vexing jurisdictional questions that turn on international law. Finally, in an addendum, I briefly address a related issue involving the primary charges in the case, those involving the bombing of the USS COLE. [NOTE: In an earlier version of this post I misconstrued one aspect of the government’s appellate brief. After re-reading the brief, I have edited the post to reflect what I hope is a more faithful account of the prosecution’s argument.]

I.What’s this interlocutory appeal about, anyway?

I have previously written about the principal charges against al-Nashiri, which involve the October 2000 bombing of a U.S. military ship, the USS COLE. As I explained, those charges raise two very important legal questions: (1) Whether the armed conflict between the United States and al Qaeda had begun by October 2000; and (2) What constitutes an unlawful use of “perfidy” in a noninternational armed conflict.

Neither of those issues is the subject of the prosecution’s latest, interlocutory appeal. Indeed, that appeal is not about the charges involving the COLE bombing at all, but is instead focused on the one of the other terrorist incidents alleged in the charges against al-Nashiri–an al Qaeda bombing of a different ship, the MV Limburg, off the coast of Yemen in October 2002. Four of the charges or specifications against al-Nashiri involve his alleged participation in the 2002 Limburg bombing.

Unlike the COLE, the Limburg was neither a U.S. ship nor a military vessel: It was a civilian tanker registered under a French flag, chartered by a Malaysian firm (Petronas), and carrying almost 400,000 barrels of crude oil from Iran to Malaysia. The attack killed one person (a Bulgarian crew member), injured a dozen others, and caused about $45 million in damage. It also caused a temporary shutdown of shipping in the Gulf of Aden. The attack obviously affected France, Malaysia, Iran and Bulgaria. Therefore if al-Nashiri is responsible for the attack on the Limburg he has violated plenty of laws (including, presumably, the laws of France, Malaysia, and Yemen), and he should be held accountable in a criminal trial. But why should his case end up as a trial for war crimes . . . let alone for war crimes in a U.S. military tribunal?

That fundamental question informs Judge Spath’s dismissal of the Limburg-relatedcharges in al-Nashiri: He found that the government had not come forward with any evidence that might demonstrate that the bombing took place as part of an armed conflict, which is what would be necessary in order to establish the military court’s jurisdiction.

Here’s the underlying legal context for the judge’s decision, adapted from an earlier post of mine about Limburg bombing charges also brought in another case, against Ahmed Mohammed Ahmed Haza al Darbi (who later pleaded guilty):

The 2009 Military Commissions Act provides (10 U.S.C. 950(p)(c)) that “[a]n offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities.” Section 948a(9) in turn provides that “[t]he term ‘hostilities’ means any conflict subject to the laws of war.” Thus, as a matter of U.S. statutory law, al-Nashiri can be tried and convicted of the charged offenses only if they were committed in the context of, and associated with, an armed conflict subject to the laws of war. Indeed, because the military commissions are constitutionally limited (at least in this context) to trying only conduct that violates the laws of war, the prosecution will have to prove that the Limburg bombing occurred as part of an armed conflict–since it is only in such an armed conflict that the laws of war can be violated. The Limburg-related charges all depend upon the idea that the attack violated the “principle of distinction”–the law-of-war rule that civilians and civilian objects may not be targeted for the use of force in an armed conflict. Of course, almost all terrorist acts–and plenty of other crimes, as well (murder, battery, etc.)–involve the deliberate use of force against civilians. That does not mean that each and every such crime, or act of terrorism, is a violation of the principle of distinction. That norm is violated only by attacks on civilians or civilian objects that are committed as part of an armed conflict. Thus, if al Qaeda attacked the Limburg as part of its armed conflict with the United States, that attack almost certainly violated the laws of war, since it involved the deliberate targeting of a civilian object and of civilians. By contrast, if the attack did not occur as part of an armed conflict, then the charges–such as deliberately targeting civilians–would allege ordinary domestic-law criminal offenses (murder, terrorism, and the like), but not law-of-war offenses. In the latter case, the military commission would lack jurisdiction to try the offenses.

In its charges and in its brief to the CMCR, the prosecution has hinted at its theory of why the Limburg bombing should be viewed as part of the armed conflict between the United States and al Qaeda–namely, that this attack on a French civilian tanker was “aimed at harming the United States” (brief at page 39), or, as one of the four pertinent charges in the case (the “Terrorism” charge) characterizes it, the Limburg attack was done “in a manner calculated to influence and affect the conduct of the United States government by intimidation and coercion and to retaliate against the United States government.” In earlier briefs, the prosecution had suggested that the U.S.-related aim of the Limburg attack was to cause the worldwide price of oil to rise and thereby disrupt the U.S. economy. The prosecution’s latest brief to the CMCR does not reiterate that particular theory. Instead, the only specification it offers about how the Limburg attack was supposed to harm or influence the U.S. (p.33) is a citation to a “voluntary statement” of al-Nashiri himself allegedly “stating that the goal of the Limburg attack was to send a message to the United States not to travel through Yemen and the Arabian Peninsula.” (The al-Nashiri statement in question was included in an attachment to the prosecution’s motion to the military judge for reconsideration of the motion to dismiss. The version of that attachment posted online includes no content and is for some reason labeled “Under Seal.” Therefore there is no way for me to offer any further details about what. exactly, al-Nashiri said, or under what circumstances.)

The military judge declined to opine on whether such evidence of an intent to deter the U.S. from traveling through Yemen and the Arabian Peninsula would be sufficient as a matter of law to establish that the Limburg attack was part of al Qaeda’s armed conflict against the United States: “The Commission need not reach any conclusions of law based on both parties’ legal arguments raised in their written filings and oral arguments,” wrote the court. Instead, Judge Spath dismissed the charges because the government had failed to come forward with any pretrial evidence to support its legal theories: “While the facts argued by the Prosecution may be easily susceptible of proof, the Prosecution failed to request an evidentiary hearing and offer any documentary or testimonial evidence into the record to factually support their assertion of jurisdiction as to the charges and specification involving the MV Limburg. The Prosecution has thus failed to meet its burden of persuasion in this interlocutory matter.”

II. The Government’s arguments on appeal–and the question of when jurisdiction should be determined

The government’s brief to the CMCR likewise says very little about why evidence of such al Qaeda intent to intimidate the United States would be sufficient to establish a law-of-war offense–violation of the primciple of distinction–that can be tried in a military commission. Instead–and largely because of the frustratingly imprecise way in which the issue was teed up in the trial court–the government’s brief is principally devoted to arguing three other points: (i) that the government has established personal jurisdiction over the defendant (something the defendant has not contested and is therefore inapposite); (ii) that the question of the court’s subject matter jurisdiction–whether the conduct in question would violate the laws of war–should not be considered before trial at all, but should instead be determined, at the earliest, only after the government has introduced its evidence at trial concerning how the Limburg attack was related to the armed conflict between the United States and al Qaeda; and (iii) that if the question of subject matter jurisdiction is adjudicated prior to trial, the government should be afforded further opportunity to come forward with evidence that would, if proved, establish such jurisdiction.

Of these arguments, the second is the most significant. The government is correct that the trial judge should not adjudicate before trial the raw facts that the government intends to prove, such as whether al-Nashiri planned the Limburg attack and whether al Qaeda designed that attack to “send a message” to the United States. Even so, this is surely a case in which the barebones facts alleged in the charges raise a serious question about whether the government’s theory of the case is legally adequate to establish the court’s jurisdiction: In particular, would it be enough for jurisdictional purposes if the prosecution were to prove that al Qaeda attacked the Limburg — a ship with no U.S. connections — “in a manner calculated to influence and affect the conduct of the United States government by intimidation and coercion and to retaliate against the United States government,” as alleged in one of those charges? Would that establish a violation of the law of war in the armed conflict between al Qaeda and the United States?

Perhaps, then, it would be appropriate and efficient for the courts to ask (or, if possible, require) the prosecution to provide a bill of particulars of the facts that it intends to prove to establish that the Limburg bombing was part of an armed conflict and thus a violation of the principle of distinction. (The Manual for Military Commissions explains that the purpose of a bill of particulars is to “inform the accused of the nature of the charge with sufficient precision to enable the accused to prepare for trial,” and that a bill of particulars “may . . . be used when a specification [in preferred charges] is indefinite or ambiguous.”) The court could then determine beforetrial the question of whether proof of such facts would be legally sufficient to establish the jurisdictional requirement that the attack was indeed committed as part of an armed conflict (i.e., assuming that the prosecution were to offer sufficient evidence to prove those facts). See Military Commissions Manual Rule 907 (explaining that an accused may make a motion to dismiss “to terminate further proceedings to one or more charges and specifications on grounds [including jurisdictional grounds] capable of resolution without trial of the general issue of guilt.”).

For example, the court could then decide whether a terrorist attack on a civilian ship, otherwise not chargeable in a military commission, becomes a violation of the law-of-war principle of distinction merely because it occurs while an armed conflict is underway elsewhere and the attack is intended to “send a message” to the opposing belligerent party (the United States) “not to travel through” particular waters. Or, alternatively, if it would be sufficient for the prosecution to prove that the attack occured while an armed conflict is underway and was intended to have downstream effects on the economy of the opposing belligerent party (the United States), by causing an increase in the worldwide price of oil (assuming the prosecution plans to prove such intent).

If the government’s evidence, even if credited, would be legally insufficient to establish the court’s jurisdiction, wouldn’t it be much more efficient to figure that out that ahead of time, in order to save everyone the cost and time that would be devoted to the Limburg-related charges at trial? Certainly, as in Hamdan (see discussion below), the government and al-Nashiri “both have a compelling interest in knowing in advance whether [al-Nashiri] may be tried by a military commission.” 548 U.S. at 589.

The government’s appellate brief argues that in the ordinary Article III criminal context, such a jurisdictional question should be determined before trial “only if trial of the facts surrounding the commission of the alleged offense would not assist the commission in determining the validity of the grounds for dismissal.” I am not aware whether the same standard is appropriate in the context of military commissions; but even if it were, this would appear to be a case in which the trial of the facts might not matter. That is to say, if the Limburg attack would not violate the principle of distinction–would not be a law-of-war offense–even if the government could prove that it was done “in a manner calculated to influence and affect the conduct of the United States government by intimidation and coercion and to retaliate against the United States government,” then the Limburg-related charges could be dismissed for lack of jurisdiction without the need to adjudicate whether that was, in fact, al Qaeda’s calculation when it attacked the ship. It is not obvious, in other words, that the government is correct when it argues that a “factual question relating to subject-matter jurisdiction . . . is not capable of determination without trial on the general issue of guilt.” (Of course, if, on the other hand, such a design to intimidate and coerce the U.S. were sufficient to establish a violation of the law of war, and thus commission jurisdiction, then the trial would be necessary to test whether that was, in fact, al Qaeda’s, and al-Nashiri’s, design.)*

Hamdan v. Rumsfeld offers an instructive analogy. In that case, seven of the Justices debated, before trial, whether Hamdan’s alleged conduct, if proved, (i) occurred during an armed conflict; and (ii) constituted a law-of-war offense triable in a military commission. (Four Justices would have answered both questions “no”; three others “yes.”) Although three of the Justices further concluded that the federal habeas courts should engage in a form of discretionary abstention to allow the military courts to resolve the questions in the first instance (a view that the majority of the Court rejected), none of the Justices (nor the parties, if recollection serves) so much as suggested that such jurisdictional questions must be reserved for trial: All of the Justices assumed that these were exactly the sorts of questions of law that judges can and should answer themselves before trial–namely, if the prosecution carries its burden of proof on the underlying facts at trial, would such a showing suffice to establish military commission jurisdiction over the offense?

III. Another lurking question: Who should decide such jurisdictional questions of international law?

One of the prosecution’s principal reasons for arguing that it is premature to decide the jurisdictional question is that, according to the government, that question should not (or cannot) be answered before the verdict, since subject-matter jurisdiction here depends upon factual questions that are virtually the same as questions that the commission panel (the jurors, in a sense) will be required to decide. In particular, each of the alleged offenses to be put before the panel includes an element that is virtually identical to the statutory test for commission jurisdiction–namely, that the government prove beyond a reasonable doubt that the offense was “committed in the context of and associated with hostilities,” where the term “hostilities” is defined to mean “any conflict subject to the laws of war.” The prosecution suggests that the panel should be allowed to adjudicate that element, which will in turn inform the court’s decision on jurisdiction.

To be sure, the commission panel at trial would be the appropriate body to adjudicate the predicate facts–such as whether the defendant planned the Limburg bombing with the intent to harm or intimidate the United States, a state that was engaged in a “conflict subject to the laws of war” at the time of the bombing. And if such a finding is all that is required to show that the bombing was “committed in the context of and associated with hostilities,” perhaps that’s fine for purposes of the literal terms of the statutory element. But such a finding would not resolve the question that is critical for purposes of the court’s jurisdiction–namely, whether such an intent to influence the United States (even if it establishes an “association” with the U.S. armed conflict) turns the Limburg bombing into a violation of the laws of war.

The jurisdictional question about the Limburg attack, in other words–was it a violation of the laws of war?—-is a legal question, and one that depends upon a difficult issue of international law (in particular, on the circumstances under which an attack on a civilian target violates the law-of-war principle of distinction). Thus, even if the trial judge does not resolve that question before trial, then, surely he should do so after the government introduces its evidence: If the court determines, for example, that proof of an intent to “send a message” to the United States would make the bombing of a civilian target a law-of-war violation, then he should instruct the panel that it should find the “hostilities” element satisfied if it concludes that the prosecution has proved such an intent. But if, the other hand, the court were to conclude that such intent is legally inadequate to show that the bombing occurred as part of an armed conflict, then the court should dismiss the Limburg charges for insufficiency, rather than send the question to the panel.

To its credit, the government’s brief (at pp. 26-27 and 34) acknowledges that this jurisdictional question is ultimately one for the court, not the panel, and that it can be decided after the government presents its case-in-chief, before the panel makes any findings. Accordingly, even if the CMCR does not affirm the dismissal of the Limburg charges, Judge Spath should himself decide, either now or, at the latest, after the government presents its evidence at trial, whether the government’s evidence would be sufficient, if proved, to transform the Limburg bombing from a domestic terrorism offense into a violation of the law-of-war principle of distinction.

ADDENDUM:

As the government’s brief reveals, the “when should jurisdiction be determined?” and “who decides?” problems discussed above arise in even more acute form with respect to the central charges in al-Nashiri,involving the COLE bombing: As I’ve explained, the military court only has jurisdiction over those charges if the U.S. and al Qaeda were engaged in an armed conflict as of October 2000. The facts the prosecution intends to show in support of its view that there was such an armed conflict at the relevant time are hardly a secret.**

Either those facts (which are essentially undisputed) establish the existence of an armed conflict under international law as of October 2000, or they don’t. If the judge concludes that they do, then he should instruct the trial panel to decide whether the government has proved those facts (or whatever other facts the court determines are necessary or sufficient to establish the existence of an armed conflict under international law). If, by contrast, Judge Spath decides that the facts would not establish an armed conflict as a matter of international law, even if proved, then he should not submit the charges to the panel. Indeed, it would be best to decide that question now, before trial.

The prosecution’s brief, however, repeats an argument it has made previously–namely, that it is up to the panel at trial to determine whether “hostilities” existed, i.e., whether there was an armed conflict between the U.S. and al Qaeda at the time of the offense (p.25). The question of whether particular facts and circumstances establish the existence of an armed conflict–and thus trigger application of the laws of armed conflict–is a very complex question that has famously vexed even the most thoughtful international law jurists and commentators. The notion that it could be resolved by a military panel here is, I think, unrealistic–and perhaps unprecedented outside the context of the MCA.***

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* Citing the practice in civil cases, Jens Ohlin argues that where, as here, the prosecution is required to make a certain factual showing both to establish the court’s jurisdiction and to prove elements of an offense, it should be obliged to make at least a prima facie case for the relevant fact before trial, and then again prove the element beyond a reasonable doubt at trial. Although this certainly sounds like a reasonable way of proceeding, I am not familiar with whether that two-step process has been deemed appropriate in criminal cases, let alone in military commissions.

** In earlier briefs, the government has indicated that it intends to prove an armed conflict as of October 2000 with evidence of the following (virtually undisputed) facts:

1. From August 1996 through May 1998, Osama bin Laden made various public statements “declaring war” against the U.S., vowing to use force to drive the U.S. out of Muslim countries, and issuing fatwas against the U.S. 2. In August 1998, al Qaeda bombed the U.S. embassies in Nairobi and Dar es Salaam, killing over 200 and injuring thousands. 3. A few days later, the U.S. struck terrorist camps in Afghanistan and a suspected chemical weapons factory in Sudan, asserting self-defense in response to the embassy bombings. 4. In January 2000, al Qaeda attempted an attack on the USS THE SULLIVANS near Aden. and 5. In October 2000, al Qaeda attacked the USS COLE itself.

*** The prosecution has argued that the al-Nashiri panel should be given the same instruction regarding “hostilities” that the commission panels in Hamdan and al-Bahlul were given on how to determine whether there those defendants acted in an “armed conflict.” That charge was the following:

[T]he government must prove beyond a reasonable doubt that the actions of the accused took place in the context of and that they were associated with armed conflict. In determining whether an armed conflict existed between the United States and al Qaeda and when it began, you should consider the length, duration, and intensity of hostilities between the parties, whether there was protracted armed violence between governmental authorities and organized armed groups, whether and when the United States decided to employ the combat capabilities of its armed forces to meet the al Qaeda threat, the number of persons killed or wounded on each side, the amount of property damage on each side, statements of the leaders of both sides indicating their perceptions regarding the existence of an armed conflict, including the presence or absence of a declaration to that effect, and any other facts or circumstances you consider relevant to determining the existence of armed conflict. The parties may argue the existence of other facts and circumstances from which you might reach your determination regarding this issue. In determining whether the acts of the accused took place in the context of and were associated with an armed conflict, you should consider whether the acts of the accused occurred during the period of an armed conflict as defined above, whether they were performed while the accused acted on behalf of or under the authority of a party to the armed conflict, and whether they constituted or were closely and substantially related to hostilities occurring during the armed conflict and other facts and circumstances you consider relevant to this issue. Counsel may address this matter during their closing arguments, and may suggest other factors for your consideration. Conduct of the accused that occurs at a distance from the area of conflict can still be in the context of and associated with armed conflict, as long as it was closely and substantially related to the hostilities that comprised the conflict.

The most troubling thing about this charge is that it identifies a whole slew of factors that might be relevant to the legal question — as well as the unspecified catch-all “other facts and circumstances” — and then instructs the jury to assess those factors and determine “whether the acts of the accused occurred during the period of an armed conflict as defined above.” But there is no definition above, let alone a definition that accurately reflects the international law requirements for an armed conflict. Instead, there is only the listing of various factors and circumstances, with no articulation of how the panel should weigh and evaluate them under the law.